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Neil Roberts

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Everything posted by Neil Roberts

  1. I believe it is something the company's policies should define as to what function is responsible for those items. Agency supplied temporary labor and consultants aren't necessarily part of supplier management/purchasing function and when that is the case, those requirements should not be routed to it.
  2. Quality, price and delivery schedule come to mind as factors to consider. Procurements may differ from one another as to importance and risk.
  3. I do not know what an "independent" consultant is. FAR 31.205-33 defines consultant services as follows: (a) Definition. "Professional and consultant services," as used in this subsection, means those services rendered by persons who are members of a particular profession or possess a special skill and who are not officers or employees of the contractor. Examples include those services acquired by contractors or subcontractors in order to enhance their legal, economic, financial, or technical positions. Professional and consultant services are generally acquired to obtain information, advice, opinions, alternatives, conclusions, recommendations, training, or direct assistance, such as studies, analyses, evaluations, liaison with Government officials, or other forms of representation. Typical government contract clauses that are required to be flowed down, indicate they are to be included in subcontracts. A consultant contract, as defined above, is not in my view, a subcontract. For example, FAR 52.244-2 defines subcontract as follows: Subcontract means any contract, as defined in FAR subpart 2.1, entered into by a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders. The confusion comes up often when Supplier Management is tasked with issuing consultant agreements, whereas their expertise is subcontracts. Consultant agreements should be handled by a specialist, whether they are in Supplier Management, Contracts or some other group so as to avoid the confusion. I do not know what insurance requirements you are referring to. Your company may have general business requirements it wants in all contracts issued. Your question about "materialman" needs more detailed information about the situation that prompted your question.
  4. It would probably be better if you described the contract situation/background you are thinking about. FAR 22.402, contracts for construction work, includes the following: (2) The requirements of this subpart do not apply to- (i) The manufacturing of components or materials off the site of the work or their subsequent delivery to the site by the commercial supplier or materialman;
  5. When executing an NDA, you should propose and negotiate language in it that expresses your expectations. I have not seen the NDA. I am doubting that it indicates your company is a "joint" responder to the RFI. If it did, you should have signed the RFI, and of course, you would have then seen it. In my experience with a major prime contractor, I am not aware that we ever "shared" our RFI or proposal submittal with a potential subcontractor. The submittal is potentially "competition sensitive" and therefore easier to just not share it at all than to have to decide when sharing it with what company may be an acceptable risk. If it was to be shared, the NDA would indicate that your company agrees to keep it confidential.
  6. I think that would be the end of the relationship with the other company. I would expect this would result in an award being unfavorable and could also lead to a lawsuit depending on the wording of the NDA.
  7. Your company can consider elevating the concern with prime contractor's upper management through your upper management. You should have impact facts such as how many subcontracts and their estimated dollar value are estimated to be affected and some quantification as to your company's cost of compliance with the prime contractor's request. Also, if your company is a small business, you may take this up with SBA and/or your federal legislators. If you do these things nicely, things could change. in my experience, prime contractor upper management does not like to receive inquiries from federal legislators or SBA concerning "beating up" a small business with requirements that are not clearly there and have adverse impact worth discussing.
  8. The Sept 2021 CPSR Guidebook Job Aid section 5.7.4, entitled Review, does not indicate that FAR requires what the prime contractor is indicating. It does not call for a review of the specific date the declaration was obtained.
  9. here_to_help, I think your belief is misplaced...the difficulty or ease of qualifying for either cost or price basis does not nullify that a party may qualify for either, no matter how easy or difficult each is. If you want to say that one or the other may likely be more common, then go ahead.
  10. If FAR 31.205-26 is applicable to the subcontractor and prime contractor, per paragraph (e), it may be on the basis of cost or price by either party.
  11. If you really have a contract requirement to end all closeout work, you should consider stopping such closeout work as required by the contract. Would be prudent to notify the government with as much advanced notice as you can give, and ask for input from the government as to the interpretation that all closeout work is required to stop after that POP and that all work performed after that date is in jeopardy of not being paid by the government.
  12. @LeighHar, I am from the contractor side and agree with your interpretation (1 report for base + all option values and no further reporting required when options are exercised per the awarded contract.)
  13. You may consult the Federal Funding Accountability and Transparency Act Subaward Reporting System Awardee Guide (FSRS) at https://www.fsrs.gov/
  14. Z-Mil, you may be technically correct regarding your assertion. If you feel strongly about it, you should push back on the government's SBSP review and see what happens. You asked how others dealt with it. My prior comments about the process is how a major prime contractor deals with it. Small Business reviewers tend to focus on CFR small business requirements, where it states it is required at time of solicitation vs. the FAR clause you cited where it only requires it at time of award. Your position may not be that receptive, which may be what motivates contractors to comply with a NAICS code at time of solicitation. Compliance avoids conflict with various government customer functions and shifts the risk of NAICS code error onto the subcontractor.
  15. Having difficulty understanding your concern. Are you saying a NAICS Code is not required for a solicitation or ???
  16. In follow-up, the contract awarded to a subcontractor should include the NAICS code(s) disclosed by the subcontractor in the pre-award representation.
  17. One way of doing it is to include the following in supplier solicitations: North American Industry Classification Code Systems (NAICS) Information Insert the primary six-digit NAICS code that identifies business establishments according various industry classifications and aligns with the business size you are representing to Buyer in this representation as indicated elsewhere. NAICS replaced the Standard Industrial Classification (SIC) system. https://www.census.gov/naics NAICS Code Description Primary Secondary Secondary Secondary Secondary Secondary Secondary
  18. What would be the basis for termination...I assume for the government's convenience?
  19. Garth, before we leave this, I wanted to point out that DFARS 252.227-7013 admonishment you rely on in your post is not the only language that may be applicable. See DFARS 252.244-7001 CONTRACTOR PURCHASING SYSTEM ADMINISTRATION-BASIC (MAY 2014) (c) (2) as follows: (c) System criteria. The Contractor’s purchasing system shall— (2) Ensure that all applicable purchase orders and subcontracts contain all flowdown clauses, including terms and conditions and any other clauses needed to carry out the requirements of the prime contract; So, in each case where you suspect something, you should ask the prime contractor or other Buyer, what the rationale is for needing it. The answers to that might not be obvious to a subcontractor.
  20. I suggest a subcontractor protect its reputation by engaging an experienced government contracts/subcontracts intellectual property attorney before contacting a Government Agency or Members of Congress.
  21. No, and I have been involved with many CPSR reviews where DCMA is involved.. The intellectual property area is complicated in its technical meaning. In my experience, very few people involved in government contracts and subcontracts are well versed enough to analyze if there has been an overreach. I don't recall any government CPSR Guidebook item that covers this. I have been involved with many negotiations between prime and subcontractor where objections by the subcontractor were raised and resolved or at least understood better. Some were not. I don't doubt that what you say appears to or actually has taken place. Under the circumstances, it may be that way as much or more by substance ignorance or misapplication of the company's standard terms than intentional.
  22. ,I am not aware of any definition of that in the UCC or common law. If you are, would appreciate you sharing it. Thanks.
  23. Per FAR 4.1802(b) and 52.204-17 , I would assume the Government issues contracts to the Cage Code that owns or controls a Cage Code offeror. And, if that was not the practice, to me, the correct Cage Code holder is not being examined and held accountable for meeting the NDC criteria.
  24. The online law dictionary defines "entity" as follows" Legally, equal to a person who might owe taxes. A generic term inclusive of person, partnership, organization, or business. An entity can be legally bound. An entity is uniquely identifiable from any other entity. My view is that a division or department is not an entity because they can't be sued or contract in their name. However, a subsidiary or joint venture may be a segment/entity. I did not research the context for the CFR segment definition above. But according to your post, the NDC concerns entities, not segments.
  25. The DPAS rating applies to a supplier at all levels when the DPAS rating/requirement is included in the contract between a supplier at any level and its higher level customer (this includes the customer called Government.) You must examine the terms of the contract between this "vendor" and its customer to know whether the DPAS rating/requirement was flowed.
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